Summary: Mr X complained the Council provided contradictory information on education otherwise than at school and the administration of this by parents. He complained it provided an inadequate personal budget and failed to carry out an appropriate consultation with a new school about his son’s Education Health and Care Plan. The Council failed to properly consider Mr X’s request for a personal budget and his concerns about the budget payments. The Council has agreed to take action to prevent the fault reoccurring and make a payment to recognise the injustice caused.

The complaint

1. Mr X complained that the Council had:
• Incorrectly stated on his son, C’s, Education Health and Care Plan (EHCP) in February 2022 there was an agreement to electively home educate.
• Provided contradictory information on parent administration of education otherwise than at school (EOTAS).
• Refused to allow parent managed EOTAS despite agreeing to it in other circumstances.
• Provided an inadequate interim personal budget for EOTAS.
• Failed to carry out an appropriate consultation.
2. He says C has found this distressing and feels ignored by the Council. He believes it affected C’s education. He says this caused him and his wife distress.

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What I have and have not investigated

3. I have investigated the Council’s handling of a parent managed EOTAS budget and the consultation carried out in February 2022.
4. Part of Mr X’s complaint to the Council includes his concerns about the provision setting the Council included in section I of the EHCP. Parents have a right of appeal to the SEND tribunal if they disagree with the special educational provision or the school named in their child’s EHCP. Therefore, we will not investigate Mr X’s complaint about the Council’s decision to name elective home education in section I.
5. I will not investigate any complaints that arose before February 2022. This is because Mr X has raised a previous complaint with the Ombudsman about issues that occurred prior to this date.

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The Ombudsman’s role and powers

6. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
7. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

10. I have considered:
• The information provided by Mr X and discussed the complaint with him;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
11. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

12. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. Parents have a right to educate their children at home (Section 7, Education Act 1996). This can include the use of tutors or parental support groups. Elective home education (EHE) is distinct from education provided by a council otherwise than at school, for example when a child is too ill to attend. In choosing to educate a child at home, the parents take on financial responsibility for any costs involved, including examination costs.
14. Councils have a power, but not a duty, to provide support for example funding or therapy at home for children with SEN who are EHE. The SEN Code of Practice states that councils should fund the SEN needs of home-educated children where it is appropriate to do so.
15. Councils have a duty to make arrangements to enable them to identify children in their area of compulsory school age who are not registered pupils at a school (including academies and free schools) and are not receiving suitable education otherwise (Section 436A, Education Act 1996).
16. In circumstances where the child cannot attend school, the council should be offering alternative provision to reduce the likelihood that a child will end up without suitable education.
17. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))

What happened

18. Mr X’s son, C, has an EHCP due to his complex needs relating to his autism. He has had several school placement failures due to issues managing and meeting his needs.
19. C began attending a new school (school A) in September 2020. A review of C’s EHCP began in May 2021. In September 2021 the Council agreed for an enabling service, which provides alternative education and enrichment programmes, to provide some of C’s provision.
20. In late 2021 concerns were raised that C could not engage in his provision. C could engage in the offsite provision with the enabling service but not the school provision and he did not have a suitable peer group.
21. A meeting was held in early-December 2021 to review the provision. During the meeting, school A said it did not feel it could meet C’s needs. The Council sent a consultation following the meeting and school A formally confirmed this.
22. In early February 2022 C’s mum, Mrs X, emailed the Council. She suggested C have a part-time placement in a school and that she and Mr X manage a bespoke package using a personal budget for the remaining time.
23. The Council sent consultations to two potential schools and in mid-February 2022 they responded. Both schools indicated they could not meet C’s needs in their school environment. Around the same time C’s placement at school A ended.
24. In late February 2022 the Council issued a final EHCP for C. No alternative school had been found and Mr and Mrs X were recorded as electively home educating C.
25. Following this, Mrs X presented a budget for a year’s educational provision for C. The Council agreed to discuss the budget and have a manager review it. Mrs X agreed to hold off hiring any staff to provide the provision.
26. In early March 2022 Mrs X told the Council of the costs incurred in the first two weeks and asked for payment in advance for the next week. The Council agreed to these costs and stated it would pay £150 per week going forward based on the average costs. Mr and Mrs X raised concerns about the budget agreed. The Council responded explaining it was agreeing a personal budget for elective home education.
27. Mr X raised concerns they had not agreed to electively home educate C but to manage an EOTAS budget. They explained they did not wish to electively home educate.
28. In mid-March the Council wrote to Mr X providing an explanation of the differences between EOTAS and elective home education. The Council explained it would not fund curriculum activities if the parents chose to manage C’s curriculum as this would be elective home education. It said in EOTAS the Council would arrange and fund the provision rather than Mr or Mrs X. It explained that to provide EOTAS it would have to be satisfied that C could not attend school. Mr and Mrs X again confirmed they did not want to educate C without the Council providing a full budget. They stated they would be happy for a school or the enabling service to manage the budget.
29. The letter also explained the Council was willing to provide interim provision for C under section 19. It stated it would provide £150 per week to pay for provision and would fund eight hours of provision with the enabling service.
30. The Council sent out a consultation to a new school (school B) in mid-March. It asked them not to contact Mr or Mrs X. School B responded in late March to say it could meet C’s needs.
31. In late March the Council contacted Mr X to discuss his concerns. It raised the possibility of arranging alternative provision if Mr X was not happy with the payment of £150 to arrange provision. Mr X’s response asked for details of the outcome of the Council’s consultation with the alternative provision provider.
32. At the end of March the Council held a meeting to discuss the provision options for C. During the meeting it agreed to provide information on school B’s offer, and review the consultation with the mainstream school consulted in February. It also agreed to provide information on the personal budget the Council could offer under elective home education.
33. After the meeting the Council provided Mrs X with a copy of its consultations with school B and the mainstream school. It stated it needed more time to provide information on personal budgets. In response Mrs X explained they did not want elective home education but manage EOTAS. If that was not being offered they would like a school to be named in C’s EHCP as soon as possible.
34. C started at school B in early May 2022.

Findings

Provided contradictory information on EOTAS

35. A parent of a child with an EHCP is entitled to seek a personal budget for their child to secure agreed provision mentioned in the EHCP. During the review Mr and Mrs X indicated they would like to have a budget to run C’s provision in the community rather than this be run by the school. This was a personal budget request.
36. The Council should have a process in place for dealing with requests for a personal budget. Statutory guidance says this should include discussions about what provision in the EHCP the personal budget would be intended to cover and any conditions there would be on the personal budget. The Council’s policy does not set out any process by which it will consider personal budget requests.
37. I have considered whether the Council had these discussions when reviewing the request. It has not provided any evidence which shows any discussions about personal budgets. The Council’s failure to follow process and fully consider the request is fault.

Refusal to allow parent managed EOTAS

38. When Mr and Mrs X said they had not agreed to electively home educating C, the Council explained that as there was a suitable school place it would not agree to EOTAS. I appreciate that Mr and Mrs X believe this response was the Council going back on its agreement. It is difficult to say whether the Council’s position in fact changed. The Council’s failure to set out a clear position before the EHCP was issued in February 2022 is fault as it means that I cannot be certain what the Council intended on offering to Mr and Mrs X. Its failure to provide this information has caused substantial confusion for Mr and Mrs X. The Council’s actions have also impacted on C.

Provided an inadequate EOTAS budget

39. Following issuing C’s EHCP the Council calculated a personal budget based on the first two weeks of costs Mrs X had sent. There is no evidence it discussed or agreed with Mrs X that it would use her submitted costs to calculate a weekly budget moving forward. Further it did not discuss what the payments would be for specifically or the terms on which the payments were being made. This is despite Mr and Mrs X raising clear concerns about this.
40. Mr X raised concerns about the amount the Council was paying per week as the invoices Mrs X had sent did not include the full cost of the provision C was receiving. It did not include the costs of provision by the enabling service. When Mr X raised concerns the costs were not enough, the Council should have reviewed this. There is no evidence the Council carried out any further consideration of the costs offered. This is fault.

Failure to offer alternative provision

41. When the Council became aware that Mr and Mrs X were not agreeing to elective home education, C had already been taken off the school roll. Had the Council had the necessary discussions around personal budgets these issues could have been resolved before C was removed from the school roll. This could have prevented C from being without educational provision. The Council’s action meant that C was without a school place for two and half months.
42. Furthermore, the legislation is clear: the Council has a duty to provide alternative education where a child is unable to attend school due to illness, exclusion or otherwise (emphasis added). I am not satisfied the Council took sufficient steps to arrange alternative provision for C when it became aware his parents did not feel they had agreed to electively home educate.
43. I appreciate the Council referred to the payments of £150 as section 19 provision in its emails in mid-March. I am not satisfied these payments amounted to suitable section 19 provision. I have seen no evidence the Council made any enquiries about the education being provided outside of the eight hours C was receiving at the enabling service. There is no evidence of the Council seeking reassurances on how weekly payments were being used or whether this provided sufficient provision for C’s needs.
44. On two occasions the Council offered to arrange section 19 provision when Mr X raised concerns about the current provision. Although Mr X responded asking for information about the consultation there is no evidence the Council took further steps to arrange provision. Its lack of action in arranging suitable alternative provision for C is fault.

Consultation process

45. When Mr and Mrs X informed the Council they did not want to electively home educate C the Council had a duty to find a suitable school place. The Council made an enquiry with school B.
46. The guidance states that parents and young people should be involved in the process but it is not prescriptive on the stages that the parents must be involved at. Although the Council did not initially involve Mr and Mrs X in its enquiry with the school it did inform them of this at a meeting in late March. Following the meeting C was able to arrange a visit to the school and the school spoke to Mr and Mrs X. There is not fault in when the Council involved Mr and Mrs X in its consultation.

Injustice

47. The Council’s failure to have discussions about the personal budget has caused significant confusion. Mr and Mrs X believed they would be offered a significant budget. This has left them angry and frustrated.
48. Further C was taken off the school roll before Mr and Mrs X being clear on the provision. When they became clear of the expectations and the budget available C had no school placement. The Council’s actions in failing to arrange suitable full-time alternative provision meant that C has lost education provision for two and half months.

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Agreed action

49. The Council, within one month of the final decision, will:
• Apologise to Mr X and C for the injustice caused by the faults identified above. The apology to C should only be provided if Mr X feels it is appropriate and in a format that best suits C’s needs.
• Pay Mr X £300 for the injustice caused.
• Pay Mr X, for the benefit of C, £1,000 (£400 per month) for the loss of provision.
50. The Council, within three months of the final decision, will:
• Ensure it has a policy in place for providing alternative education to children out of school, which complies with section 19 of the Education Act 1996. It should include reference and guidance for children who are out of school for other reasons.
• Review its policy and procedure for handling SEN personal budget requests, ensuring it has guidance which sets out the process by which it will review a request in line with the SEN code of practice 2015.
• Provide training to all staff in the special education needs department on how to deal with requests for personal budgets.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation. I have found fault leading to injustice. I have recommended action to remedy the injustice and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman